Traditional vs. Gestational Surrogacy: Does the Difference Matter?

This is sort of picking up on my last post, so you might want to start there. Here’s my working hypothesis: If you assert that the genetic connection between an adult and a child is not what entitles a person to be recognized as a parent of the child then you should not distinguish between gestational surrogacy and traditional surrogacy.

I initially offer this as a logical proposition. I understand many will not accept the premise–that genetic connection shouldn’t be determinative of parental status. But should you accept the premise–even just for the sake of argument, then I think the conclusion follows inevitably. After all, the difference between gestational surrogacy and traditionally surrogacy is that in the former the surrogate is not genetically related to the fetus and in the latter she is.

I think this is worth highlighting, because I don’t think it is an obvious point. For instance, many years ago, the first surrogacy case to capture the public imagination was Baby M. This was a traditional surrogacy case–Mary Beth Whitehead was genetically related to Baby M. The case was eventually resolved by the New Jersey Supreme Court and Ms. Whitehead was recognized as a parent of the child.

Since Baby M, traditional surrogacy has been viewed with distrust and suspicion and gestational surrogacy has become far more common. That obviously suggests that many people think there’s a meaningful difference between the two things.

This was brought into stark contrast for me in a recent NJ case I wrote about. It’s a gestational surrogacy case and the question the judge had to decide was whether it was distinguishable (legally speaking) from Baby M. The trial judge concluded it was not.

I’m not suggesting that both forms of surrogacy should be permissible or that both forms of surrogacy should be impermissible. It’s just that I think they ought to be treated the same. Whatever the issues are about women’s right to give meaningful consent or commodification they should be understood to be the same.

In terms of that initial proposition–that the genetic link should not determine parental status–I think there are strong feminist arguments in support of this contention.

Legal parental status brings with it power, not only over the child, but over other parents of that child. (I’ve written about this before.) If a person who provides the sperm is necessarily a father then the ability of women–single women or lesbians–to maintain their own autonomous families is lost. Every family would necessarily include a father.

Again, I understand that for many people this is fine, even desireable. But for those who value the ability of women to create families without fathers, I think it’s important to think through the logical implications of that stance. And one place it should lead is to a refusal (or at least a reluctance) to distinguish between forms of surrogacy.

There’s another potential gain for women here, I think. Surrogates are always women. Of course being pregnant and giving birth is physically stressful, but a preference for gestational surrogacy essentially requires would-be surrogates to agree to IVF as well as pregnancy. That only makes the process harder, riskier and more stressful.

I expect there are women who would agree to be gestational surrogates and not traditional surrogates. Similarly, there are commissioning couples who would probably prefer to engage a gestational surrogate and not a traditional surrogate. I’m not making the claim here that these preferences should be disallowed. Rather, I want to suggest that, at least from my perspective, the law ought not to give meaning to the distinction. And if I had my druthers, society wouldn’t either.

YES! Thank you for this post. The two types of surrogacy are functionally the same, and should be treated as such. The hazards of IVF to both surrogate and child (yes, there have been studies showing that IVF has higher incidents of pregnancy complications) are not negligible, and if society were more willing to accept that fact, then I think we’d see fewer medical problems associated with the IVF process and more use of traditional surrogates. I think that would probably also bring down the average surrogacy, and make it accessible to more people.

At the same time, I think we really need to stress that a family is a family, and to value different types of families differently creates a false hierarchy that isn’t good for anyone. Part of the drive toward surrogacy is the desire to avoid an adoptive family- something stigmatized far too readily in the US. By creating these hierarchies we’re not helping anyone.

I think your point about stigma is a great one to raise here. I think societal views must influence our preferences. None of us can be immune to this. When certain options are stigmatized, it will be somewhat harder for people to choose those options and so somewhat fewer people will choose them. I’m not saying anything about quantity, just that there must be some effect. And that’s always at work, including, as you suggest, when people consider surrogacy and adoption.

1. Why should we ignore biological fatherhood, as well as fatherhood as it has been traditionally constructed simply to cater to the lobby of a select group of women?

(NOTE: I AM ONE OF THESE WOMEN. I AM A SINGLE WOMEN FRANTICALLY NEARING THE END OF MY FERTILITY. YET YOU DON’T SEE ME RANTING ABOUT HOW THE LAW SHOULD BEND REALITY TO ACCOMODATE ME.)

What about catering to single men seeking to raise their children autonomously without the interference of mothers? Doesn’t quite have the same progressive ring to it, does it?

2. Double frustration to hear the word “surrogate” used to describe a woman carrying her own genetic child, even if she is planning to surrender it to someone else upon birth. By that logic, every teen who walks into a crisis pregnancy center can be viewed as a surrogate- fodder for the adoption industry. And I don’t have to tell you how objectifying that is.

3. Triple frustrated, hearing you say that if we call someone a father we must accord him all the legal rights and responsibilities of fatherhood. You’re the one who keeps championing “the child’s day to day reality”. So according to your logic, no we need not accord the anonymous, or even known, but abdicatedfather, all the rights and responsibilities of parenthood. Frankly I wonder how secure you are in that position, that you keep maintaining the necessity of denying both the biological as well as the traditional social reality.

I on the other hand, do not see that it is always necessary to accord the biological father the legal status, and therefore I have more freedom to acknowledge reality as it is.

What’s different between surrogacy and adoption? The intent. The parents adopting have the intention to parent a child; the parents choosing surrogacy have the intention to parent a particular child. The surrogate has the intention of getting pregnant; the teen at the crisis pregnancy center had no intention to become pregnant. The child in a surrogate situation was intentionally brought into being through lots of work and wanting; the child in an adopting situation was not intentional, came about due to a mistake.

And can you cite any instance of single men having any difficulty raising their child without interference from a woman?

But intent to be the parent of a particular child should not be enough for the law to say a person is that child’s parent if the child is not that person’s offspring. Don’t we as a polite society want to be sure that people willingly gave up their parental rights to their offspring in a court of law rather then having their rights usurped by another person who intended to be that child’s parent without first obtaining consent? If intent determines whether or not a person is a parent, then lack of intent would determine who was not a parent. So men and women who make adoption plans prior to the birth of their offspring would simply not be named on their offspring’s birth certificate? Should they just be erased and replaced by the names of the people adopting? Should none of it be handled in a court of law should there be no record of the progenitor’s voluntary relinquishment of their parental rights? Should there be no homestudy for the adopters? Should at birth adoption be handled by private contract? Should lack of intent release men from being obligated to pay dependant support to children they conceived out of wedlock that are in fact their own offspring? Anyone could intend to be the parent of anyone elses offspring, its documenting the consent after the child is born that is critical to maintaining true and accurate records and protecting the rights of people who may not even know that they have offspring because their embryo mistakenly got implanted into another clinic customer or whatever. If maternal DNA verification is done at birth before as part of the certification process nobody would ever be named mother or father of a child that was not their offspring – the law would have an opportunity to say who conceived this child and are they aware that their offspring was born? They need to relinquish their parental rights before the court can grant you parental rights over their child. Many men are deliberately not told that they have offspring and by the time they find out another person has been holding their offspring out as their child for so long that they lost the right to be the parent of their own offspring due to fraud or laziness. Surogates who are not related to the child should not have to give the child up for adoption, that is backwards. The law should protect the rights of people to raise their own offspring and it should obligate them to do so whether or not they are married and it should punish people who knowingly falsify records in an attempt to take a persons parental rights outside a court of law and without the knowledge and consent of the absent progenitor.

I see a sort of rationale in having the child raised in the marital home. In a certain way the child’s life is likely to be more stable.
But that is inconsistent- imagine in a case of divorce with one parent remarrying and the other still single- if someone would try to pass a law that the married parent automatically gets custody there would be a hue and outcry you can be sure of that.

Right–what she said about the difference between surrogacy and adoption. This is what I just tried to put in my comment below. And I will say again here–you may respond by saying the difference doesn’t matter or you may respond by saying that there are other implications to relying on this difference (and I think there may be) but can we at least agree that this is a difference?

Kisarita: I don’t mean to set you on edge. Neither do I mean to ignore the biological relationship between a man and a child who is concieved using his sperm.

I know you want me to call him a biological father and that I am resisting that, largely because I don’t find the term helpful at all. But how about this–I will promise to reconsider my objection and to think again about whether I should change my usages. As a point in favor of changing, it might make it easier for you and I to focus on the substance (as opposed to the terminology) we might disagree about. But for the moment I’ll stick with the usage you object to and try to press on.

Your question about single men is a difficult one for me, but very worthy of consideration. If you focus on genetics, then men and women are similarly situated with regard to the creation of children. Each contributes a gamete, one-half of the needed genetic material.

But if instead you focus on pregnancy, men and women are not similarly situtated. Women become pregnant and give birth. Men do not.

To put this slightly differently, I think you can only argue that men and women should be treated the same with regard to children (at the time of the child’s birth) if you somehow ignore or discount pregnancy. I am loathe to do that. Thus, I don’t know quite what to say about single men or gay male couples. They lack a critical gamete, as do single women or lesbian couples, but they also lack a womb. Thus single men and gay male couples must look to surrogacy to fill that need. And I cannot help but see surrogacy as quite different from use of gametes provided by others.

I fear this reply is going on awfully long, but let me say a word about point 2. I think this just illustrates the point I was trying to make. IF you put weight on biological connection THEN gestational surrogacy looks totally different from traditional surrogacy. That’s the view you are taking.

But IF you do not put weight on genetic connection, then the two forms of surrogacy look the same. In both a woman becomes pregnant for someone else, with the plan being that she will deliver the child to someone else. The difference between a surrogate and a pregnant teenager trying to figure out what to do is that the surrogate only became pregnant in order to give the child away–it was part of a plan. Presumably the pregnant teenager was not planning to be pregnant, much less to be pregnant for someone else.

You may say this difference doesn’t matter, and of course, that’s another whole discussion. But it is an articulable difference.

How about families created by kidnapping or purchasing children? Do we need to tweak the law to recognize them too? Do we need to respect men who rape women to have progeny? Not all families deserve respect and equality.

Did you see Gone Baby Gone? (Shoot, spoiler alert, sorry…) Kidnappers and baby purchasers would be families because they’d be living with and raising kids like a family. Rapists would probably not be called part of a family, but it’s still unnecessary to respect their method of conceiving children.

I didn’t see it and I confess to being completely lost about what point you are making. I think it’s perfectly possible to make the case that the law should recognize and accomodate some non-traditional family forms without letting in everything under the sun. I’m not afraid to draw lines, but I’m not clear enough about your examples to draw them.

And for what it is worth, I assume if genetics does determine legal parentage that a rapist is the legal father of the resulting child. One might then terminate his rights, but it seems to me hard to argue he doesn’t start with them if you use genetics as your method of initial assignment.

I would consider a man who knowingly allows himself to be named as the father of his wifes child when that child is another man’s offspring – I would consider that becoming a parent by fraud – deliberately falsifying information and preventing the other man from even knowing that he had a child. Two of my friends were raised by stepfathers who agreed to pretend the child was their own. The real father was never told. They only recently reunited. That is kidnapping. If the stepfather did not know he was raising someone elses child its still kidnapping only its the mother doing it all by herself. When my brother took his two kids from their mother who was a drunk and a drug addict the state troopers came to my parents house to arrest my brother and bring the kids back one parent can definately kidnap the kids from the other. If you attempt to stop a person from having control over their kids its kidnapping. People that become parents of someone elses offspring without their consent should spend some time in jail. A valliant attempt to obtain consent should be made and if that person cannot be found or contacted that should not be a waiver of their rights because someday they may surface and find out they have a child – it happens that by the time a person learns they have a child they have already lost out to the husband boyfriend or same-sex partner

There’s a lot going on in this paragraph. Clearly the law does sometimes contenance the conduct you disaprove of–as where a husband and wife claim legal parentage of t a child who is genetically related to a different man. (I say this only so that it is clear that existing law does not follow the line you suggest.)

I don’t know anything about the anecdotes you recount, so I do not presume to comment on them. I suspect my reaction would depend on knowing more of the facts.

It is unconscionable that the father is excluded because the mother chose to exclude him whereas if she had decided she did but he was unwilling, the state would hunt him down. It is unconscionable that the convenience of mothers is what determines whether someone is a father or not.

And that’s what this is all about. As Julie said, accomodating a small group of women who want to parent alone.

Yeah, there are occasionally men who use ART or even better yet, who pay money or sign contracts, who benefit from the law but the vast majority of men who don’t, are screwed by this philosophy.

(My former friend did that. She upped and skipped the country because she couldn’t handle the idea of compromising. True her baby’s dad was no angel either, but Should the law respect her for that?)

It’s an interesting case and I promise to discuss it in the near future. I might even agree that what happened is wrong. It’s not necessarily inconsistent with my point. I wouldn’t describe him (from my very quick skim of the facts) as the functional equivalent of a sperm donor, though I think he is being treated that way.

I think in general people need to be honest and forthright with each other. So when I talk about women who wish to raise children without the participation I consider instances where men elect to participate in that process. I can try to spell this out later (if I haven’t already) but I don’t consider this case to be illustrative of what I’m thinking about.

A woman that gives birth to another woman’s offspring is a gestational surrogate and a woman that gives birth to her own offspring is a traditional surrogate. Julie, you agreed, the gestational surrogate should not be named as mother on the child’s birth cirtificate. I think she should not be named as mother because the child is not her offspring and she should hand the child over to its real mother the moment the cord is cut. This brings me to a sticking point – Some gestational surrogates want to keep the baby. Maybe the baby she delivered is the offspring of an “egg donor/egg provider/gamete provider”. I know you might say then she is not a gestational surrogate, but what difference does it make who paid who? It is suppose to be against the law to purchase people so I think its best if the law ignore the fact that money is changing hands for unborn humans lest they all wind up in Jail. I looked the definition of surrogate up and “it means a substitute for” payment is not even mentioned in the dictionary. So scientifically A woman pregnant with another woman’s offspring is a gestational surrogate for the body that the egg came from that is the body that the baby should be gestated in; it does not matter if the baby is her husband’s offspring and she would like the world to think that she is the mother of his child or if the baby belongs to some strange couple paying her.

If by INTEND what we mean is purchase then the entire affair becomes quite illegal and distasteful doesnt it?

“Some gestational surrogates want to keep the baby.”
Extremely few. Stats that were cited in another blog post had the # of surrogates trying to keep the child about half the # of parents wanting to abandon the child.

“I looked the definition of surrogate up and “it means a substitute for” payment is not even mentioned in the dictionary. ”
You realize that there are altruistic surrogacies, right? Compensation does not need to occur for a surrogacy to take place.

It’s not clear to me that the surrogates who want to keep the babies (and there are few of them) are disproportionately traditional surrogates. To put that another way, I’m not sure it’s any more likely that a traditional surrogate will change her mind than that a gestational surrogate will change her mind. It’s hard to say because the practice in the US is clearly skewed towards gestational surrogacy and so that’s what we read about.

I’ve never been a surrogate, so I cannot speak from experience, but it seems to me that successful surrogacy has everything to do with the self-knowledge of the surrogate and perhaps with the relationship between the surrogate and the commissioning people. It also seems clear that people differ about the degree to which they think the genetic link is critical, so perhaps some find gestational surrogacy easier to contemplate. But very few women become surrogates at all and so it would be hard to guess about their thinking and my guess is, as always, it would be a mistake to generalize.

I agree that the formulation “traditional surrogacy” is odd. But I think that’s the term generally used. This is one place where I might be happy to use another term. The only other one I think I’ve seen is “straight surrogacy” and that doesn’t seem to me to be helfpul. It does seem that you and I agree we should in some way distinguish surrgacy where the woman is genetically unrelated to the fetus (“gestational surrogacy”) from surrogacy where the woman is genetically related. What should we call that other one? (I want to keep “surrogacy” in there because I think that identifies it in which the woman is is pregnant is said to be acting on behalf of someone else and helps keep the extent to which the situations are parallel in view.)

As for your other questions–I do think both of those things somewhat more likely, though that’s just a hunch. But I don’t think that’s the right comparison to make. Most women won’t consider being surrogates under any terms, as I understand it. I think the right question to ask is whether women who have agreed to be surrogates are more likely to follow through where they are engaged in one form of surrogacy rather than the other.

I’m sure there are some women who will be surrogates, but would only agree to be gestational surrogates, perhaps for the reasons you describe. So there may be more women who are willing to agree to be gestational surrogates. But that still doesn’t say more of them will follow through.

I hope we can agree that while the generalizations you offer are possibly true, there are undoubtedly some women who don’t fit them. Thus, for some women it is just as easy to contemplate traditional surrogacy as it is gestational surrogacy. If they undertake to be tradtional surrogates (which is physcially safer and easier) then they are as likely to follow through as if they under take gestational surrogacy.

The key, I think, is women’s self-knowledge. If a woman is considering becoming a surrogate, she ought to think hard about whether she thinks she can do it and if the form of surrogacy matters. Only women who think that can do traditional surrogacy should sign up for that. And what I’m trying to say is that, at least from experience in the UK, it seems that women who do think they can do traditionaly surrogacy as as likely to be right about that as are women who think they can only do genetic surrogacy. And in both instances, a very high proportion of the women who think they can do it are right.

I actually think it is possible to accomodate both egg/sperm donation and surrogacy if you say the critical thing is intention. The person providing gametes does not intend to be a parent. The surrogate does not intend to be a parent. The commissioning parents do intend to be parents.

Now that said, I do not want to be seen as advocating for that point of view. I have a lot of problems with intention as the determinant of parental staus. But I do think it would allow both surrogacy and use of gametes provided by third parties.

I do generally reject genetics as right approach. And that for me means the use of third-party gametes is unproblematic. But frankly, I’m quite torn about surrogacy. If you recall, I generally care about performance–who actually does the work, who is really there for the child, etc. And it seems to me that this view would suggest that the woman who is pregnant is a parent. Which makes surrogacy a much more complicated problem. (I have discussed this a long time back on the blog.)

My discussion of whether to distinguish between gestational surrogacy and traditional surrogacy was not meant to suggest I approve of them both. I just think I should have the same analysis for both of them, whatever that analysis is.

I think there is a paradigm shift that has to be acknowledged when moving from Traditional to Gestational Surrogacy. The former always requires one to address a fundamental right of the woman carrying the child. The latter always requires one to address the fundamental rights of the child.

If the child on a birth certificate is not the offspring of the people named as parents based on a technicality that the parent can be legally accurate but not medically accurate, maybe the length gender weight date and time of birth can be medically inaccurate but legally accurate as well. If you prefer to have the child recorded as 6 lbs on the birth certificate but actually the child was 8 lbs. It becomes legally true, certainly by virtue of being certified it does, doesnt it? But its wrong

I don’t really mean to open the birth certificate question again right here, but surely the name of the woman who actually gives birth is the one that is historically accurate? Whether she is genetically related or not is irrelevant. If you think that a birth certificate is a record oif what happened at a time and place, then the only name that belongs there is the woman who gives birth.

That said, there are very long discussions elsewhere on the blog about birth certificates and I’m sure we’ll return to the topic at some point. Bottom line is whatever we may think or might prefer, under current law birth certificates aren’t entirely certificates of historical fact.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.